HKSAR v. Polo Navarro Juan Carlos

CACC 108/2019

[2019] HKCA 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 108 OF 2019

(ON APPEAL FROM DCCC NO. 574 OF 2018)

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REASONS FOR JUDGMENT

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Introduction

1.On 13 March 2019, the applicant pleaded guilty to a charge of trafficking in a dangerous drug[1] before District Court Judge Sham (the judge).  The total narcotic content of the drugs was 5.64 grammes of cocaine.  He was sentenced to 32 months’ imprisonment.  The applicant sought leave to appeal against sentence, his Form XI notice of application having been filed on 3 April 2019.  

2.At the end of the hearing, I refused the applicant’s leave application, saying that I would give my reasons in due course which I now do.  

The facts

3.This is a simple stop and search case. Close to midnight on 27 April 2018, the applicant was intercepted by the police in Central.  Upon a search conducted on the applicant, the police found inside his right trouser pocket 12 transparent re-sealable plastic bags containing 4.59 grammes of cocaine.  In addition, 2 transparent re-sealable plastic bags containing 1.05 grammes of cocaine were found in a wallet inside the applicant’s left trouser pocket, making a total of 5.64 grammes of cocaine, the estimated value of which was about HK$8,000. 

4.The applicant was a Form 8 recognizance holder at the time of the arrest.  

The applicant’s personal circumstances and mitigation

5.The applicant was single and was aged 37.  He came to Hong Kong from Venezuela in November 2017 and had a clear record prior to the commission of the present offence.  At the time of the offence, he was allowed to remain under a Form 8 recognizance. 

6.A urine test conducted on the applicant after his remand showed positive result for cocaine.  During mitigation, Mr Martyn Richmond, counsel for the applicant, submitted that the 12 packets of drugs found inside his right pocket were for the applicant’s own use whereas the remaining 2 packets were for trafficking.  When the judge indicated that he was not prepared to accept such a submission, the applicant declined to give evidence in support.  

Reasons for Sentence

7.The judge first dealt with the claim for self-consumption but rejected that there was any substantial part for the applicant’s use.  Based on the urine test result, the judge, however, accepted that the applicant was a cocaine abuser and that some of the drugs seized might be for his own consumption.  

8.Having considered the amount of the drugs involved and having applied the tariffs (2 to 5 years for up to 10 grammes) in R v Lau Tak-ming[2], the judge adopted a starting point of 44 months.  He then exercised his discretion to reduce it by 2 months to 42 months to take account of the self-consumption element[3].

9.This 42-month term was then enhanced by 6 months to 48 months to reflect that the offence was committed by a Form 8 holder[4]. 

10.Finally, after affording the applicant a one-third discount for his plea, the judge sentenced him to a term of 32 months’ imprisonment. 

Grounds of appeal against sentence

11.In relation to this application, the applicant originally filed with the court his home-made grounds of appeal which were attached to the Form XI.  Subsequently, he sent two letters to the Director of Public Prosecutions, wrongly dated 5 September 2019 and 9 September 2019, which were then made available to the Court by the respondent. 

12.At the hearing, the applicant, however, clarified that he would only rely on the grounds set out in his letter of 9 September 2019 which are the following:

(1)  His sentence should be based on that imposed in HKSAR v Restrepo Gonzalez Sebastian[5] as their cases are similar (a starting point of 30 months was adopted in Restrepo which involved 5.42 grammes of cocaine trafficked by a Form 8 holder); and

(2)  His sentence should not have been enhanced as, like Restrepo, he did not have any formal asylum application at the time of the offence.

Consideration

13.Before I deal with the individual grounds of appeal, it may perhaps be easier to understand the applicant’s arguments if the way in which District Court Judge Casewell dealt with the sentence in Restrepo is first set out.  

14.In his reasons for sentence, Judge Casewell said:

“I have been referred to a case called HKSAR v Yepes Santana, which is at 447/2017, where, for a similar quantity of cocaine, a starting point adopted by the court was 30 months’ imprisonment. That would appear to be a calculation that is appropriate, given the range available to the court in the guideline.”[6]

15.In respect of the defendant’s status of a Form 8 holder, Judge Casewell considered that: 

“20. The way in which the court has resolved that is on the basis that, where the defendant is a Form 8 holder and a claim for non-refoulement is made, the defendant is punished more heavily by virtue of the fact that an element of his culpability is the cause of harm to Hong Kong, to which Hong Kong would not otherwise be exposed but for the fact that it had allowed him to remain in Hong Kong and at liberty pending the determination of his Immigration claim.

21. In fact, in this case, the defendant was at liberty pending the completion of removal arrangements for him, so he is not in the same category as a Form 8 holder who has made an application for non-refoulement. So I find the aggravating factor set out in the court in that case is not appropriate to this defendant.”[7]

16.In putting forth grounds (1) and (2), the applicant is effectively asking this Court to make a comparison of the sentence passed in his case and that imposed in Restrepo. However, this Court has repeatedly said that:

“there is little or no merit in referring this Court to first instance decisions when determining appropriate levels of sentence.”[8]

(i)   Ground (1): starting point

17.Coming back to the present application, Mr Daryanani for the respondent pointed out in his helpful written submissions that on a strict mathematical approach, 5.64 grammes of cocaine should attract a starting point of 44 months (24 months + 5.64/10 x 36 months = 44 months).  

18.This is precisely the starting point adopted by the judge. Based on the applicable tariffs, I find no error committed by the judge in adopting this starting point.  Further, it should be noted that Mr Richmond also did not take issue with this starting point.[9]

19.Therefore, while the applicant may feel aggrieved in that a much lower starting point was adopted in Restrepo, the correct approach is:

“to focus on the applicant’s own sentence and to examine that sentence, the route by which it was reached and the reasons that underlie it in order to determine whether the judge who sentenced him has fallen into appealable error. In the absence of appealable error, all an applicant can show is that another offender in a wholly unrelated case has been treated more leniently than he. This may well be a source of grievance to the applicant, and understandable grievance at that, but it is not enough reason for this court to interfere.”[10]

20.In this connection, it is helpful to bear in mind the observation made by Macrae JA, as he then was, in HKSAR v Wan Wai Lun[11]:

“As this Court said in Smit Hector Edward, a departure from a strict arithmetical starting point, whilst not by itself objectionable, should be explained where it is significant.”

21.The 30-month starting point adopted in Restrepo and Yepes was, in my view, a significant departure from the pure arithmetical starting point of 44 months. It would therefore be of assistance for explanations to be given to such a departure so that anyone looking at the sentence would know why a lower starting point was adopted in a particular case. 

22.Nonetheless, as pointed out above, the fact that another defendant was given a lower sentence in another case does not assist the applicant. Ground (1) is a non-starter. 

(ii)   Ground (2): enhancement for Form 8 holder

23.By this ground, the applicant complained about the enhancement in his case because he said that he did not have any formal asylum application at the time of the offence. 

24.The sequence of events, as confirmed by the applicant at the hearing, was as follows.  The applicant arrived in Hong Kong on the strength of his Venezuelan passport on 29 August 2017 and was permitted to stay until 27 November 2017.  The applicant overstayed and submitted a written signification for non-refoulement claim on 4 December 2017.  However, on 25 January 2018, the signification was rejected as the applicant did not give an indication of his reasons for the claim.  Later, the applicant was told that he would be deported. On 27 April 2018, the applicant committed the present offence while being a Form 8 holder.  

25.Although the applicant sought to argue, apparently based on the case of Restrepo, that there should not have been any enhancement, Mr Richmond accepted at the time of mitigation that the applicant’s status as a Form 8 holder was an aggravating factor calling for an enhancement of 6 months.[12] 

26.The reason for the enhancement, as explained in HKSAR v Ali Saif[13], is this:

“If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.”

27.If betrayal of trust is one of the main reasons for the enhancement, this reasoning should hold good irrespective of whether the defendant committed the offence while awaiting the processing of his claim or while awaiting his removal following a failed or withdrawn application.  In both cases, trust was reposed in the defendants by the immigration authority granting them the Form 8 and, in both cases, when they committed offences while being Form 8 holders, they were abusing the trust and the hospitality extended to them by the Hong Kong community. 

28.Therefore, I find myself unable to agree with Judge Casewell in respect of the approach he adopted in Restrepo.  In particular, if such an approach were to be adopted, it would mean that a Form 8 holder whose claim was unsuccessful or whose claim was not further proceeded with would be in a better position than one whose claim was still being processed and who might have a successful claim at the end.  This does not appear to be the correct approach for enhancement. 

29.In any event, as set out above, the focus of this appeal should be on the sentence imposed; the route by which it was reached; and the reasons that underlay it. Given that the enhancement of 6 months to take account of a defendant’s status as a Form 8 holder is in line with the authorities, I do not consider that there is any appealable error in respect of the enhancement adopted by the judge.  The fact that another defendant in another case did not have his sentence so enhanced would not invalidate the judge’s proper enhancement in the present case. 

30.Ground (2) is plainly not arguable.

Conclusion

31.For the above reasons, I refused the application for leave to appeal against sentence. 

32.At the end of the hearing, I reminded the applicant of his right to renew his application before the Court of Appeal but I also warned him that should he do so, and should the Court of Appeal find no merit for the renewal of the application, the Court of Appeal might order loss of time which the applicant has spent in custody pending his appeal. 

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

The applicant appeared in person